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Alternatives in the works if Carcieri fix legislation fails

LAS VEGAS – The Obama administration is considering alternative ways to “fix” the U.S. Supreme Court’s controversial Carcieri v. Salazar ruling in case proposed legislation doesn’t work.

George Skibine, the principal deputy assistant secretary for Indian Affairs and a member of a panel on the Carcieri ruling at the Global Gaming Expo, told the audience that the Interior Department is weighing its options to come up with a “Plan B” just in case amendments to the Indian Reorganization Act of 1934 fail to pass in the House and Senate.

The U.S. Supreme Court ruling last February effectively prohibits the Interior secretary from taking land into trust for tribal nations not “under federal jurisdiction” in 1934. The ruling did not define the term.

Three bills have been introduced in the House and Senate that would reaffirm the secretary’s authority to take land into trust for federally recognized tribes, regardless of when they were recognized, by having Congress change the phrase “any recognized tribe now under federal jurisdiction” to “any recognized tribe.”

Both tribal leaders and some government officials are worried that the proposed legislation has a slim chance of passing as a stand-alone bill.

“Is there a Plan B?” Skibine asked. “I think one of the issues we could look at is a regulatory fix – have a regulation that would be issued by the secretary and essentially says what it means to be under the federal government in 1934.”

In a printed handout provided to the audience, moderator Michael Anderson of the firm Anderson Tuell, LLP, reviewed the various definitions of “under federal jurisdiction.”

“At a minimum (it) means that the federal government exercised some form of jurisdiction over a tribe and its members in 1934. In a concurring opinion, (U.S. Supreme Court) Justice David Breyer suggests the relevant question is whether a tribe should have been under federal jurisdiction. This means two things: First, that the jurisdictional analysis can be performed retroactively. Second, it means that a tribe may have been under federal jurisdiction in 1934 regardless of whether the United States either knew it or even denied it at the time,” Anderson said.

Breyer also suggested that ongoing treaty rights or aboriginal title might be acceptable evidence. Anderson noted that a 1980 opinion from the Interior Department solicitor suggested that continuing hunting and fishing rights under treaty would be evidence, and the Office of Federal Acknowledgment has used treaties, laws, or presidential directives specifically referencing a tribe, land purchases for a tribe, provision of school services, and provision of federal services as evidence of federal jurisdiction.

Skibine said the idea of issuing a regulation defining the phrase was floated to the tribal nations during consultations last summer but the response was “lukewarm,” because tribes felt it would slow down a legislative remedy.

The department continues to review land into trust applications case by case. Following the Carcieri decision, the department issued a guidance to regional directors to continue to process applications for those tribes that were clearly “under federal jurisdiction” in 1934, and seek a solicitor’s opinion for those tribes where the question of jurisdiction in 1934 is cloudy.

Skibine said the department has also considered whether there should be a national policy or a solicitor’s opinion that would interpret what “under federal jurisdiction” means in general.

“And at this point we have not resolved that issue, but I think one of the issues is you (can) have one big national lawsuit that essentially may not be the best possible way to move for us or for the tribes.”

Skibine expressed his belief that a Carcieri fix will indeed happen even though the method of repair is not clear at the moment.

“We believe the right to take land into trust is a fundamental right for Indian tribes and the secretary supports that right. That’s why we hope we can essentially prevent or fix the problems that Carcieri engendered for some of the tribes.”

W. Ron Allen, chairman of the Jamestown S’Klallam Tribe and treasurer of the National Congress of American Indians, said a Carcieri fix was urgently needed to avoid litigation. The ruling not only restricts the secretary from taking new land into trust, but also puts at risk all of the land taken into trust over the past 75 years for tribal nations recognized after 1934.

“They got it wrong. They misunderstood this historic relationship. … It’s really about the potential of a ton of litigation.”

Allen said the proposed amendments will “fall” along party lines, but he doubts if a standalone bill will pass.

“We believe we’re going to have to take it and attach it to an appropriations bill or an energy bill or whatever. We’ll figure it out. But part of it is there is still a lot of anti-Indian sentiment out there and misunderstanding about a tribe reacquiring its homeland. Our homeland is our foundation.”

Chris Coppin, Western Attorneys General Association director, said only a vociferous minority of attorneys general opposes a Carcieri fix and they come from states that have signed settlement acts with tribal nations.

“Alaska, Rhode Island, Connecticut, which has Attorney General Richard Blumenthal – those are the most vocal states.”

Blumenthal led the attack in Carcieri v. Salazar by soliciting support from almost two dozen entities to sign on as interveners in the case.